Emerging from the lockdown – significant changes introduced to the key regulations

As the UK moves to the next phase of its COVID-19 response, the Government has increasingly started looking at ways to lift the lockdown and restart the economy.

Our previous blogs (see here and here), and our podcast (see here) give a broad overview of the Government’s immediate legislative response to the crisis. While the Coronavirus Act 2020 was the key piece of primary legislation passed by the Government, most key measures to control the spread of the virus were introduced through statutory instruments ("SIs") such as regulations. There have been over 90 coronavirus-related SIs laid before the UK Parliament, and a large number of existing SIs have also been amended to deal with the crisis.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) are the main set of regulations through which the lockdown has been enforced in England. The Regulations came into force on 26 March 2020, and originally introduced restrictions on the movement of individuals and households, along with restrictions on business operations (including mandating the closure of premises). The Regulations were then amended through two sets of amending regulations which were made on 21 April 2020 and 12 May 2020 respectively. Both sets of amending regulations varied the lockdown restrictions to a certain extent.

New amending regulations

On Sunday 31 May 2020, the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 were introduced to amend the Regulations for a third time. These amendments are the most significant changes to the Regulations since they were originally introduced, and make major changes to the lockdown rules. These changes came into force at 11:30AM on 1 June 2020, and include:

• Changes to restrictions on movement

The amending regulations now remove the general prohibitions/restrictions on leaving one’s home, and replace it with a narrow prohibition on people staying overnight “without reasonable excuse” at any place other than the place where they are living (amended Regulation 6). In practice, therefore, people can now be outside their home for any reason (subject to the rules on gatherings below). The only situation in which a “reasonable excuse” will need to be shown is if anyone is staying overnight at a place that is not their residence.

What constitutes a “reasonable excuse” is listed in Regulation 6(2). This includes cases where a person needs to stay elsewhere to attend the funeral of a close family member or a member of their household, where a person needs to stay elsewhere while moving house, or where it is reasonably necessary for work purposes. On the face of it, the list does not appear to be an exhaustive one, and in theory, it is possible for individuals to argue that other circumstances constitute a “reasonable excuse”.

• Changes to restrictions on gatherings

The wide ranging prohibitions on gathering in public have also been replaced by more specific rules for ‘indoor’ and ‘outdoor’ spaces (whether public or private). It is now permitted to gather in outdoor places – both public and private - in groups of six or fewer people, but all indoor gatherings of any size are prohibited (apart from with members of the same household). There are certain exceptions in Regulation 7(2) to these general rules, which, for instance, permit larger gatherings for work purposes where reasonably necessary and for specific groups such as elite athletes meeting for training or competition. Another key exception is where the gatherings are at educational facilities and for registered early years childcare – this has now given a legal basis for the Government to reopen premises as part of its proposals to restart schools.

• Business closures

Specific businesses such as outdoor markets and car showrooms have also been allowed to reopen through these amending regulations.

• Enforcement

A major consequence of the changes to the restrictions on movement are that the police no longer have the power to question why people are outside of the place they are living in (and consequently, do not have the power to direct people home). However, it is important to note that failure to comply with the Regulations as amended still remains a criminal offence. The National Police Chiefs’ Council has issued guidance on when the police can use its powers of direction, and when it can force removal and use force.

• Review

The provision requiring the Secretary of State to review the need for the restrictions and requirements in the Regulations at least once every 21 days has been changed to once every 28 days (Regulation 3(2)). The next review is therefore expected to be carried out on or around 25 June 2020.

Observations

The amending regulations introduce important changes to the ‘lockdown’ rules and significantly alter what people are permitted to do in England. It is worth reiterating that Scotland, Wales and Northern Ireland are operating under different restrictions at the moment set out in regulations passed by the devolved administrations.

While the easing of restrictions has come as welcome relief to businesses and individuals, there has been some concern that the amending regulations were introduced using emergency procedure for introducing statutory instruments – effectively, they were made as law and came into force before being presented to Parliament for scrutiny (see here for our previous post on how statutory instruments are introduced). This was the same process followed in March when the Regulations were first introduced, and on 21 April and 12 May, when the first two sets of amending regulations were made. A pre-action letter has been sent by a not-for-profit membership organisation to the Secretary of State for Health and Social Care on 2 June. This letter suggests, among other things, that the Secretary of State’s use of the emergency procedure is unlawful, and seeks a response to the letter within seven days, failing which, judicial review proceedings may be commenced.

The second point of note is that the Regulations (as amended) still do not entirely cover the same ground as the key Public Health England (PHE) guidance. For instance, the public messaging from the Government about the changes has been that even outdoor gatherings of up to six persons must follow “social distancing guidelines” i.e. staying two metres apart from anyone outside of your own household. However, the Regulations do not include this requirement. The police guidance appears to take note of the difference between non-binding guidance and legislation, but there is a risk of some confusion as to what it is in the PHE guidance on the one hand and the Regulations on the other. There is also the practical issue of how the police will be able to regulate the size of gatherings in private places (both outdoor and indoor). It is notable in this context that a number of convictions brought under different pieces of COVID-19 legislation in the early weeks of lockdown have since been found to be wrongful.

Finally, it will also be interesting to see how the "reasonable excuse" clause in Regulation 6(2) is interpreted in the event of a dispute. As we note above, the list in the clause does not appear to be an exhaustive one. This is in stark contrast to Regulation 7(2), which sets out only specific limited exceptions to the rules on gatherings.

If you have any questions on the Regulations or any other concerns around the impact of the Covid-19 legislation on your business, please contact Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa or Sahil Kher.